LAW FOR ALL

Thursday, April 21, 2022

The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form “B” is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.In these circumstances, we are of the opinion that the Division Bench as also the Single Judge of the High Court did not appreciate the materials available in their proper perspective. We do not think that the view taken by the Division Bench was a possible view. Sustaining such view would result in depriving the appellant of his legitimate benefits under the applicable Voluntary Retirement Scheme. The materials relied upon by the appellant were ignored altogether. We thus set aside the judgment of the Division Bench. As a consequence, the judgment of the Single Judge also would stand set aside. The rejection order dated 13th October 2008 of the competent authority shall stand quashed. The respondent no.1 proceeded in the case of the appellant in an erroneous manner in treating the appellant’s date of birth to be 21st September 1945. We accordingly direct the respondents to extend the benefits of VRS to the appellant treating his date of birth as 21st September 1949.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2858 OF 2022

(Arising out of Special Leave to Appeal (Civil) No. 16886

of 2019)

SHANKAR LAL .…...APPELLANT(S)

VERSUS

HINDUSTAN COPPER LTD. & ORS. ……RESPONDENT(S)

J U D G M E N T

ANIRUDDHA BOSE, J.

The appellant is before us primarily questioning the

validity of an order of the employer (Hindustan Copper

Limited the first respondent in this appeal) treating his date

of birth as 21st September 1945. This date has relevance for

computation of his benefits accruing from a Voluntary

Retirement Scheme (“VRS”), for which he applied and was

granted. The appellant’s stand is that his date of birth is 21st

September 1949. The appellant had invoked the writ

jurisdiction of the High Court of Judicature for Rajasthan at

Jaipur (“the High Court”), but was unsuccessful before a

Single Judge and the Division Bench in sustaining his case.

If the latter date, i.e. 21st September, 1949 was accepted by

the employer to be his date of birth, his financial benefits

from the said scheme would have been higher, as he would

have had longer service tenure left. It appears that the

tenure of service left was the basis on which the VRS benefit

was to be computed. We would like to point out here that in

the pleadings and copies of various other documents forming

part of the paperbook, there are overlapping dates claimed by

the appellant to be his actual date of birth. These are 20th

September 1949 and 21st September 1949. This variation,

however, is insignificant so far as adjudication of this appeal

is concerned. In this judgment, we shall ignore this variation

and proceed on the basis that 21st September 1949 is the

date claimed by the appellant to be his birthdate.

2. The VRS was operational in the appellant’s case with

effect from 3rd October 2002. Admitted position is that 21st

September 1949 was recorded as his date of birth in his

service book. This was opened in 1975. He had joined the

organisation in the year 1971 and the Form “B” reflects his

date of birth as 21st September 1945. The appellant claims

that at the time of his voluntary retirement, he came to learn

for the first time that his date of birth was being changed to

21st September 1945. He invoked the writ jurisdiction of the

High Court in the year 2008 as his representations for

adhering to 21st September 1949 as his birthdate failed to

evoke positive response from the employer. That writ petition

(S.B. Civil Writ Petition No.5690/08) was disposed of by a

Single Judge with a direction to the appellant to make a fresh

representation in light of the recommendations made by a

committee of the employer themselves in his favour on the

subject controversy. The competent authority was directed, in

the same judgment delivered on 15th July 2008, to consider

and decide on the same in accordance with law.

3. The appellant’s representation was rejected by the

competent authorityemployer by an order passed on 13th

October 2008 (“the rejection order”). The appellant’s plea

against the rejection order (S.B. Civil Writ Petition No.

13195/2008) was dismissed by a learned Single Judge of the

High Court by an Order dated 24th November 2008 and his

appeal (D.B.Special Appeal Writ No.1501/2011) assailing the

order of dismissal before a Division Bench of the same High

Court also failed. The judgment of the Division Bench was

delivered on 8th December 2016. It is this judgment which is

under appeal before us. The appellant stakes his claim

primarily on his service book maintained by the employer,

where his date of birth is shown as 21st September 1949. Mr.

Kaushal Yadav, learned counsel for the appellant has also

relied on a Life Insurance Corporation (“L.I.C.”) Policy in

which the same date of birth has been shown. This policy,

however, was subscribed to by the appellant in the month of

May, 1980. The appellant’s counsel has brought to our notice

sample copies of his pay slips for the months of August 1994

and August 2001. Both these pay slips carry the message,

“Happy Birthday ***20.09.1949***”. The appellant has also

relied upon certain clauses of the Standing Orders of the

employer in support of his claim. We shall refer to the

relevant clauses thereof later in this judgment.

4. The appellant had joined the said organisation as a

miner on completion of his onemonth training in the

temporary job. Communication to that effect was issued on

th September 1971. We have already referred to different

documents emanating from or maintained by the employer

themselves where his date of birth was shown to be

21st September 1949. In the computation sheet of his

estimated “VR benefit” also the same date of birth was

reflected. By that time, the post the appellant was holding

was that of “drifter operator” (a copy of the estimate sheet

forms part of the paperbook, at page 38). The appellant was

relieved from his service on 3rd October 2002. The appellant’s

case is that he came to know that his date of birth was being

altered only after he was relieved from service. From the

materials available on record, we find reference to his date of

birth as 21st September 1945 for the first time in a form

issued by the employer on 22nd March 2003. The top portion

of this form (a copy of which appears at page 47 of the

paperbook) carries an endorsement made by the Assistant

Manager of the first respondent: “Date of birth: 21.09.1945

as per ‘B’ Form”. Immediately below this sentence there is

recordal that “D.O.B: 21.09.1949 as per H.O. Application.”

Rest of the said form contains other particulars of the

appellant, which also includes his date of birth, filled in as

20th September 1949. The appellant, however, had knowledge

of his date of birth being taken by the employer as 21st

September 1945 earlier, but according to him, he had noticed

this only after being relieved from service. In his service

certificate issued on 29th October 2002, 21st September 1945

was shown as his birthdate.

5. Stand of the respondents, represented by Ms. Nandini

Sen Mukherjee, learned counsel, is that at the entry point, he

had given his age to be 26 years, and that was the age

reflected in the Form “B”. That is a statutory form required

to be maintained under The Mines Act, 1952. It has also been

submitted by her that at that point of time, the medical

practitioner during a health checkup had also assessed his

age to be about 25 years, which would take his year of birth

closer to 1945. In the year 1975, his service book was

prepared. In such records, the appellant’s age was entered

as 26 years by mistake, repeating his age as it was at the

time he joined the organisation. That is how the inconsistent

recordal of the appellant’s birthdate is sought to be explained

by the employer. She has also emphasised that the appellant

had raised the complaint after receiving all the VRS benefits

computed on the basis of his age as reflected in the Form “B”.

6. It appears that there had been disputes over age in

respect of other employees also in the same organisation, and

a threemember committee was constituted by an Order

passed on 7th September 2004 by the General Manager,

Khetri Copper Complex of the first respondent. The

committee considered the case of the appellant also, and

their report went in his favour. Relevant extract from this

report has been annexed at page 54 of the paperbook

(Annexure P13). In Clauses 3, 4 and 5 of this report,

background has been given in relation to recordal of date of

birth of an employee. We quote below the said three clauses

from that report:

“3. As per the company’s certified standing orders,

the basis for determining the date of birth of an

employee will be:

a) Birth Certificate

b) School Leaving Certificate

c) Insurance Policy

d) Horoscope

e) Medical Report

In the standing orders followed in KCC, it is no

where written that the ‘B’ Form will be basis for the

determining the age.

4. In one of the court case (Durga Ram Vs. HCL

Case No.2427/1990) for age anomaly, the Hon’ble

High Court, Rajasthan has declined to accept the ‘B’

Form Register as the basis for age/date of birth

determination where the Hon’ble High Court had

quoted “when ‘B’ Form entries have not been made

by the petitioner in his own handwriting and the

entries have been made in ‘B’ Form in a language

which the petitioner could not have understood,

entries made in ‘B’ Form could not have been made

basis for effecting the retirement of the petitioner.

5. During construction period of KCC there was no

proper system of recording the particulars of an

employee like date of birth, age etc. Most of the

workmen were engaged as “daily rated monthly paid

basis” and there was no proper system of recording

the exact date of joining, date of birth etc. During

this period employees so engaged were never asked

for documents etc. in support of their age. Only after

the Gopal Das Narayan Award in 1971, all these

“daily rated monthly paid” workmen were regularized

and their date of initial joining in the company were

taken into account, service book was introduced and

particulars of these employees were maintained.”

(quoted verbatim from the paperbook)

7. In relation to the appellant, the recommendation of the

committee was to the following effect:

“6. Shri Shankar Lal Saini, Code No.36145, Exemployee.

Shri Shankar Lal joined the company on 21.9.1971.

His age was recorded as 26 years in the ‘B’ Form

Accordingly, his date of birth comes to 21.9.1945.

However, his date of birth was not recorded in his

service book. His service book was filled up in the

year 1975 where his date of birth was recorded as

21.9.1949 counting 26 years from the year 1975

(year of filling up the service book).

In the medical report dated 22.9.1971 also his age

was assessed as 25 years, which comes nearer to

1945 and not of 1949. The date of birth recorded in

the service book was not disputed for a long time.

However, in the year 2002, when the anomaly was

noticed the case was processed for rectification but

in the meantime, Shri Shankar Lal has submitted

V.R. and subsequently released from the

committee’s service on 3.10.2002. His V.R. payment

was released considering his date of birth as

21.9.1949 and not as 21.9.1949 (which was

recorded in his service book) as the Finance

Department did not agree to accept the date of birth

as 21.9.1949. After receiving the payment the exemployee made several request to release the

balance amount of V.R. benefit considering his date

of birth is 21.09.1949. The committee observed that

the exemployee joined this complex on 21.9.1971.

Since he was only literate, a ‘B’ register was filled up

at that time where his age was recorded as 26 years.

In the year 1975 a service book was filled up where

date of birth was recorded as 21.9.1949, counting

26 years from the year 1975. There was a medical

report dated 22.9.1971 where his age was assessed

as 25 years which makes the date of birth as

22.9.1946 but this medical report cannot be

considered as this was a routine medical report and

no medical board was set up specifically for age

determination. The committee felt that the date of

birth as 21.9.1949 was recorded in the service book

in the year 1975, which was never disputed

thereafter. Moreover, the same date of birth was

mentioned in his payslip ever year which was also

published by the committee. His LIC record also

indicates the same date of birth. Only at the time of

his release of payment in the year 2002 his date of

birth was considered from 21.9.1949 to 21.9.1949

which is against the DEP’s guidelines dated

9.2.2001. The committee, therefore, recommended to

maintain his date of birth as 21.9.1949.”

(quoted verbatim from the paperbook)

8. This recommendation was rejected by the employer,

which resulted in the appellant filing the writ petition before

the High Court. We have referred to this writ petition and

directions issued by the High Court on 15th July 2008 earlier

in this judgment.

9. The recommendation of the committee was not

accepted by the employer in the rejection order, relying on

Clause 5 of the Standing Order. The relevant extract from

this clause has been quoted in para (iv) of the rejection order

made by the competent authority. We reproduce below the

said clause, as it appears in the rejection order:

“iv) ….. However, in case of Mining workmen,

declaration of age by the individual workman in the

‘B’ Form Register as per the Mines Act/Rules may be

relied upon subject to confirmation by the

Company’s Medical Officer whenever considered

necessary.”

(quoted verbatim from the paperbook)

10. In the rejection order, reference was also made to the

guidelines of the Department of Public Enterprises,

Government of India. In Clauses (v), (vi) and (vii) of the said

order, it is recorded:

“v. The department of Public Enterprises,

Government of India in its guidelines dated 9th

February, 2001 states that the date of birth declared

by an employee and accepted by the appropriate

authority shall not be altered unless the same is

represented against with adequate

proof/justification within 5 years of joining the

service.

vi. Whereas, Shri Shankarlal never disputed the

date of birth recorded in ‘B’ Form, which is the

primary document for the purpose of recording date

of birth of employee working in Mines as per the

Mines Act and as well as the Standing Orders of the

Company, until his release from the services of the

Company on voluntary retirement on 03.10.2002 i.e.

after 31 years of service.

vii. The competent authority has taken note of the

recommendation of the Committee, which was

appointed in 2004 to examine anomalies in dates of

birth of certain number of employees. It is seen that

while examining this case, the committee had

somehow failed to consider and record the

importance of Clause No.5 of the Standing Order

applicable in case of mining workmen as referred

above. The competent authority has therefore not

accepted the recommendations of the said

committee.”

(quoted verbatim from the paperbook)

11. In the appellant’s writ petition seeking invalidation of

the rejection order, the High Court found the stand taken by

the authorities in rejecting the appellant’s plea for treating

his date of birth as 21st September 1949 to be justified. The

Single Judge of the High Court considered the fact that no

documentary evidence was available on record to support his

date of birth to be 21st September 1949. The appellant’s writ

petition was dismissed. Against the judgment of dismissal,

the appellant approached the Division Bench of the same

Court. The Division Bench also primarily relied upon the

entry in the Form “B” register and dismissed the appeal. The

Division Bench, inter alia, held:

“(5) There shall be a presumption of correctness with

regard to entries regarding date of birth made as far

back as 1971 in the statutory Form ‘B’ register

under the Mines Act. If the Appellant seeks to

challenge entries in a statutory register duly signed

by him also, the onus lies on him to prove how it

was wrongly made. Obviously the age mentioned

was not a figment of imagination by the Respondent

evident from the order of appointment which states

that it was based on his own statement

(6) The service book of the Appellant was opened in

the year 1975. There was no challenge to entry in

the same also. According to the DPE guidelines any

request for correction in the date of birth in the

service book was required to be made within 5 years.

If there was a prescription of time limit, the question

of raising any controversy much after that period

and acceptance of VRS 2002 simply does not arise.

(7) The Appellant accepted the benefits of the VRS

and then raised the dispute. The Respondents in all

fairness referred his case to a Medical Board which

again opined in confirmation of the entries made in

the Form ‘B’ register and the service book. The

contention of the Appellant with regard to his date of

birth being 21.09.1947 becomes a disputed question

of fact which cannot be inquired in the writ

jurisdiction quite apart from the fact of it having

been raised very belatedly.”

(quoted verbatim from the paperbook)

12. The stand of the employer, thus, is that in his service

book there was error in recording the age of the appellant as

26 years in 1975 and we ought not to give any credence to

such recordal. The respondents had only corrected an error

and such recordal in service book cannot be treated to be

acceptance of the appellant’s date of birth as 21st September

1949. We, however, find that the authorities proceeded in

this matter in a rather mechanical manner and embarked on

a unilateral exercise of correcting the age entry in the service

book on their perception that an error was being corrected.

This exercise was conducted without giving any opportunity

of hearing to the appellant and at the fag end of his service

tenure. Otherwise, various documents including the L.I.C.

policy consistently reflect 21st September 1949 to be the

appellant’s birthdate.

13. Clause 5 of the Standing Order on which reliance has

been placed by the employer does not treat the entry in the

Form ‘B’ recording date of birth of a miner to be the

conclusive proof of his or her age. Any doubt on a workman’s

age at the time of joining service also could be verified by a

medical board. We accept that an entry in the Form “B”

possesses high probative value, but they are not conclusive

proof of what is contained therein. The competent authority

proceeded on the basis that since the appellant did not

question the entry in Form “B”, he ought not to be permitted

to question the same at the time of his voluntary retirement.

14. The committee report prepared by three deputy general

managers of the respondent no.1 has raised doubt of the

correctness of the medical report as the same was not a

report of a medical board set up specifically for age

determination. It appears to have been a general observation

in course of health checkup. There does not appear to have

had been any other medical board constituted for that

purpose. The Division Bench, in the judgment under appeal,

has held that the respondents had referred the appellant’s

case to a medical board which had again confirmed the

entries made in the Form “B” register. We do not find from

the counter affidavit that any further medical board was

constituted. Moreover, the finding of the Division Bench that

opinion of the medical board confirmed the entries made in

the Form “B” register and service book is erroneous as in the

service book prepared in the year 1975, the year of birth of

the appellant has been treated to be 1949. Moreover, the

rejection order does not deal with the committee’s

observation that the medical opinion on the appellant’s age

was a routine medical report and not the opinion of a medical

board constituted to determine the age of an employee.

Subsequent payslips, the sample copies of which have

already been referred to in a preceding part of this judgment

also repeated 1949 to be the appellant’s year of birth. The

L.I.C. policy subscribed to by the appellant also carries the

same date of birth.

15. One of the factors that weighed with the Division

Bench was that there was no challenge to entry in the service

book, which should have been done within five years as per

the DPE guidelines. We are unable to accept this reasoning

as the service book contained 21st September 1949 as his

date of birth and this was prepared in 1975. Thus, no

occasion arose for approaching the employer for making any

correction in the service book till 2002.

16. This is not a case where a workman is seeking to

change his date of birth to his benefit at the end of his career.

This is a case where the employer is altering the records at

the end of the career of the workman to his detriment on

taking unilateral decision that the date of birth specified in

the appellant’s service book was erroneous, relying on a date

disclosed in a statutory form. Turning to Clause 5 of the

Standing Order, we have already expressed our view on the

evidentiary value of the entries in Form “B” as regards date of

birth of a workman. In the committee report, the DPE’s

guidelines dated 9th February, 2001 has been referred to,

which deals with alteration of the date of birth of an

employee. The report records:

“1. As per the DPE’s guidelines dated 9.2.2001, an

alteration of date of birth of an employee may be

considered with the sanction of the Board of

Directors, if

(a) request in this regard is made within 5 years of

his entry into the service of the Public Sector

Undertaking

(b) It is clear established that a genuine bonafide

mistake had occurred.

ineligible to appear in any school/University in

which he had appeared or for entry in Public Sector

Service on the date on which he first appeared at

such examination or on the date on which he

entered the Public Sector Services.”

(quoted verbatim from the paperbook)

17. Though in the Form “B”, the appellant’s age in 1971

was given as 26 years (the date of birth shown as 21st

September 1945), in the subsequent documents the date

appearing in service book had been reflected and it was the

date reflected in the service book which formed the basis of

the payslips as also the estimate statement of the appellant’s

voluntary retirement benefits. In such circumstances, the

appellant’s failure to seek correction in the Form “B” register

could be condoned.

18. The employer has taken a stand that the date of birth

recorded of the appellant in the service book was an act by

mistake. This is a weak explanation in our opinion. Several

subsequent steps were taken by the employer in relation to

the appellant’s employment on the basis of the entry in his

service book. The employer are the custodian of these

records. They acted all along on the basis of the service

entries till the appellant took VRS. It has been pleaded by the

appellant that at the time of his appointment, the office of the

respondent company entered in all their records his date of

birth as 21st September 1949. In the light of these facts, we

are not inclined to accept the version of the employer that

service book recordal was a mistake. The employer, a public

sector unit in this case, was expected to act with a certain

element of responsibility in maintaining the service records of

their workmen and ensure that there is uniformity in

particulars concerning individual employees. There is no

explanation as to how this mistake occurred and how pay

slips continued to be issued carrying the mistaken date of

birth for such a long time. The High Court in our view ought

not to have had accepted “mistake” as the cause for different

entries in different documents.

19. The other point on which argument has been advanced

on behalf of the employer is on the aspect of delay on the

appellant’s part in questioning the mistake in the Form “B”. It

has been urged by the respondents’ counsel that they had

extended the sum as per the VRS package computed on the

basis of 21st September 1945 as his date of birth and

complaint on that count was raised by the appellant after

receiving such benefits. It is their case that the anomaly was

discovered sometime in JulyAugust 2002 and the appellant

was asked to appear before a higher authority, which he did

on 16th October 2002. The note sheet of the appellant’s

meeting with the Assistant General Manager on 16th October

2002 has been annexed to the respondent’s counteraffidavit

marked as “R1”. The note sheet records that the appellant

had refused to put his signature thereon. Such refusal is not

of much significance so far as adjudication of the subjectdispute is concerned. Fact remains that this notesheet

appears to be the first document by which the employer had

alerted the appellant of their decision to rely on Form “B”

entry for computing his age.

20. The said document came into existence after the

appellant was released from his service on 3rd October 2002.

No document of earlier origin in this regard has been brought

to our notice in course of hearing of this appeal. The

appellant complained against such decision on 26th October

2002. Thus, the process of fixing of the appellant’s date of

birth had continued beyond the date on which he was

released from his service.

21. We do not think the appellant’s complaint over the

dispute was belated so as to nonsuit him on this count

alone. VRS benefit is an entitlement and assumes the

character of property to the employee concerned once his

application for VRS is accepted. It is the right of a person

under Article 300A of the Constitution of India to have the

VRS benefit to be given on accurate assessment thereof, the

employer here being a public sector unit. If at the time of

quantifying the VRS benefit after accepting an employee’s

application for voluntary retirement, the employer take any

step that would reduce such benefit in monetary terms, such

step shall have to be taken under the authority of law. We

find the action of the employer lacking in authority of law in

this case on two counts. First, it fails for not adhering to the

principles of natural justice. The decision not to follow the

service book recordal was taken without giving an

opportunity of hearing to the appellant. The opportunity of

hearing of the appellant also accrued because the employer

themselves had proceeded on the basis that the later date

i.e., 21st September 1949 was the birthdate of the appellant

and this was a long established position. Moreover, since in

the own records of the employer two dates were shown, under

normal circumstances it would have been incumbent on their

part to undertake an exercise on application of mind to

determine in which of these two records the mistake had

crept in. That process would also have had to involve

participation of the appellant, which would have been

compatible with the principles of natural justice. There are

several authorities in which this Court has deprecated the

practice on the part of the employees at the fag end of their

career to dispute the records pertaining to their dates of birth

that would have the effect of extension of the length of their

service. We are not referring to those authorities in this

judgment as the ratio laid down on that count by this Court

is not relevant for adjudication of this appeal. The very

reasoning on which an employee is not permitted to raise

agecorrection plea at the fag end of his service to extend his

tenure should also apply to the employer as well. It is the

employer here who had proceeded on the basis of age of the

appellant reflected in his service book during the latter’s

service tenure and they ought not to be permitted to fall back

on the Form “B” which would curtail the VRS benefit of the

appellant.

22. The principle of estoppel cannot be invoked in this case

against the appellant to debar him from claiming the benefit

properly computed as per his age reflected in the official

documents. Occasion did not arise for the appellant to advert

to the age correcting process so far as entry in the Form “B”

is concerned as the employer themselves had treated his date

of birth to be 21st September 1949 in the service book.

23. In these circumstances, we are of the opinion that the

Division Bench as also the Single Judge of the High Court did

not appreciate the materials available in their proper

perspective. We do not think that the view taken by the

Division Bench was a possible view. Sustaining such view

would result in depriving the appellant of his legitimate

benefits under the applicable Voluntary Retirement Scheme.

The materials relied upon by the appellant were ignored

altogether. We thus set aside the judgment of the Division

Bench. As a consequence, the judgment of the Single Judge

also would stand set aside. The rejection order dated 13th

October 2008 of the competent authority shall stand

quashed. The respondent no.1 proceeded in the case of the

appellant in an erroneous manner in treating the appellant’s

date of birth to be 21st September 1945. We accordingly direct

the respondents to extend the benefits of VRS to the

appellant treating his date of birth as 21st September 1949.

Such benefits shall be extended to him within a period of four

months, upon deducting therefrom the sum already paid to

him. The differential amount shall carry simple interest at

the rate of seven percent (7%) per annum to be computed

from 3rd October 2002, being the date on which he was

released from service, till the date of actual payment to him

in terms of this judgment.

24. The appeal is allowed accordingly.

25. Pending application(s), if any, shall stand disposed of.

26. There shall be no order as to costs.

….….……..................................J.

(Dr. Dhananjaya Y. Chandrachud)

.…………………..........................J.

(Aniruddha Bose)

NEW DELHI;

20th April, 2022.

Dismissal of petition for leave to appeal -not amounts to merger = A petition for leave to appeal to this Court may be dismissed by a nonspeaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a nonspeaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of 6 (2000) 6 SCC 359 29 merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared.If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.30363064 OF 2022

[Arising out of Special Leave Petition (Civil) No.22987

23015 of 2019]

STATE OF ODISHA & ORS. ETC.ETC. ...APPELLANT(S)

VERSUS

SULEKH CHANDRA PRADHAN ETC.

ETC. ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. The appellants – State of Odisha and others have

approached this Court, being aggrieved by the judgment and

order dated 20th December, 2018, delivered by the Division

Bench of the High Court of Orissa at Cuttack in a batch of writ

petitions being Writ Petition (Civil) No. 6557 of 2018 along with

connected matters, thereby dismissing the said writ petitions

filed by the appellants – State of Odisha and others, challenging

the judgments and orders delivered by the Odisha

Administrative Tribunal (hereinafter referred to as “the

Tribunal”), Bhubaneswar Bench, Bhubaneswar/Cuttack

Bench, Cuttack dated 18th May, 2017 in O.A. No. 2266 of 2015

along with connected matters and 30th January, 2018 in O.A.

No.3420 (C) of 2015 along with connected matters.

3. Vide order dated 18th May, 2017, delivered in O.A.

No.2266 of 2015 along with connected matters, the Tribunal,

Bhubaneswar Bench had allowed the Original Applications filed

by the applicants therein (respondents herein), thereby setting

aside the termination of the applicants (respondents herein)

and directing/allowing them to continue as Government

servant as third teacher/Assistant Teacher in Middle English

Schools (hereinafter referred to as “M.E. Schools”) with effect

from 1st April, 2011, as regular teacher. Vide order dated 30th

January, 2018, the Tribunal, Cuttack Bench followed its earlier

order dated 18th May, 2017 and granted the same relief to 137

Hindi Teachers.

4. The parties are referred herein as they are referred to in

the Original Applications.

5. The facts giving rise to the present appeals are as under:

6. All the applicants joined the Aided M.E. School as Hindi

Teachers, in or around 198889. The applicantSulekh

Chandra Pradhan (respondent No.1 herein) in the lead case

before the Tribunal, Bhubaneswar Bench, i.e., O.A. No.2266 of

2015, was appointed on 21st June, 1988 and joined on 23rd

June, 1988, as Hindi Teacher at Nrusingha Jena M.E. School,

Naginipur in District Kendrapada. The appointment of the said

applicant was made by the Managing Committee of the said

School.

7. On 12th May, 1992, the Government of Orissa, Education

Department issued a resolution, thereby taking over all M.E.

Schools situated in the State of Odisha with effect from 1st

April, 1991. Though the Government took over all the teachers

including nonteaching staff of the M.E. School as Government

servants, Hindi Teachers were not taken over as Government

servants and therefore, the services of the applicants were

automatically terminated. Aggrieved thereby, on 2nd July, 1993,

Sulekh Chandra Pradhan (respondent No.1 herein), approached

the High Court of Orissa at Cuttack by way of Writ Petition

being OJC No. 3042 of 1993, thereby raising a grievance that

the benefits extended to Hindi Teachers in terms of the letter of

the Deputy Director, Sanskrit, Hindi and Special Education

(hereinafter referred to as “the Deputy Director”) dated 1st May,

1992 were not being extended to him. It was asserted that

though he possessed the requisite qualification, he was not

being absorbed against the third teacher post in the M.E.

School where he was earlier working. The Division Bench of

the High Court, vide judgment and order dated 2nd July, 1993,

disposed of the said writ petition by directing the Director of

Elementary Education, Orissa (hereinafter referred to as “the

Director”), to look into the grievances of the petitioner therein

(i.e. Sulekh Chandra Pradhan) within four months from the

date of receipt of the order.

8. On 7th January, 1994, the Government of Orissa issued a

clarification that the letter dated 1st May, 1992 of the Deputy

Director addressed to all Inspectors of Schools/all District

Inspector of Schools, was applicable only to the teachers, who

were appointed against sanctioned posts and were drawing

their salaries from the Government fund under Plan and nonplan scheme. By the said communication dated 1st May, 1992,

the Deputy Director had clarified that Hindi being a nonexaminable subject in M.E. Schools, there was no need to allow

the existing Hindi Teachers in M.E. Schools to continue further.

9. It appears that in pursuance to the orders of the High

Court, the Government of Orissa addressed a letter dated 29th

September, 1995 to the Director, thereby informing that the

Government had decided to adjust such Hindi Teachers

appointed by the Managing Committee within the yardstick in

UP (ME) Schools as Assistant Teachers in the taken over M.E.

Schools either in vacant posts of Assistant Teacher or in the

post of Hindi Teacher to be created in such schools or in other

schools in relaxation of the qualifications, prescribed for the

third teachers. Vide the said communication dated 29th

September, 1995, the Director was asked to ascertain the

names of the Hindi Teachers along with their qualification from

the concerned District Inspector of Schools. In response to the

same, the Director immediately informed the Government that

since the appointments were made beyond the yardstick and

against the provisions of Odisha Education (Recruitment and

Conditions of Service of Teachers and Members of the Staff of

Aided Educational Institutions) Rules, 1974 (hereinafter

referred to as “the said Rules”), the reference to District

Inspector of Schools to furnish the names and qualifications of

such Hindi Teachers would lead to every possibility for

manipulation of the office records. It was also pointed out that

such an exercise may enable to sponsor names of Hindi

Teachers for approval by making backdated appointments. It

was therefore recommended that cases of only such Teachers

who had filed the writ application between 12th May, 1992 and

12th May, 1993, i.e., within a year after taking over of the

schools should be considered as one time measure.

10. Vide communication dated 21st May, 1996, the

Government of Orissa informed the Director that the

Government has decided to adjust 137 Hindi Teachers in M.E.

Schools. It appears that vide communication dated 17th June,

1996, the Government of Orissa also informed the Director that

while examining the original papers of Hindi Teachers, their

Acquaintance Roll should be verified by the District Inspector of

Schools. It further appears that vide communication dated 21st

August, 1996, the Government of Orissa informed the Director

that no action be taken in pursuance to its earlier

letters/communications dated 21st May, 1996 and 17th June,

1996, until further orders of the State Government.

11. Ignoring the letter/communication dated 21st August,

1996, the respective District Inspector of Schools issued

appointment order dated 27th August, 1996 in favour of the

applicant – respondent No. 1 herein. Noticing this, the

Directorate of Elementary Education, Orissa, Bhubaneswar

addressed a communication/letter dated 1st October, 1996 to

the District Inspector of Schools informing that all

appointments made by them should be kept in abeyance. It

appears that on the basis of the said communication dated 1st

October, 1996, the services of the applicants/Hindi Teachers

were discontinued with effect from 4th November, 1996. On 5th

September, 1998, the Government of Orissa addressed a

communication to the Director, stating therein that the

Government has withdrawn its G.O. No.31360 SME dated 29th

September, 1995.

12. It is the contention of the State Government that the Joint

Secretary to the Government of Orissa, Department of School

and Mass Education addressed a communication dated 7th

July, 2009 to the Director, stating therein that the Government

had decided to adjust the services of 137 Hindi Teachers in

M.E. Schools as Assistant Teachers against the vacant posts.

Vide another communication dated 2nd February, 2011, the

office of the Director informed the District Inspectors of Schools

that a committee constituted and headed by them should

scrutinize the original papers of Hindi Teachers and

acquaintance roll of the incumbents should be verified with

reference to the cash book of the School from the date of their

joining before the adjustment of such teachers. In pursuance

to the aforesaid communication dated 2nd February, 2011, the

applicants/respondents were appointed on 31st March, 2011 as

Assistant Teachers.

13. It appears that certain teachers had approached the

Tribunal by filing various applications, thereby challenging the

order dated 1st October, 1996 and 4th November, 1996, vide

which the appointment of teachers were kept in abeyance. One

of such applications being O.A. No.4029(2) of 1996 came to be

rejected by the Tribunal by order dated 12th April, 2012. It

appears that one another application being O.A. No.3800 (C) of

2012 was filed by one Nimai Charan Dash, seeking a direction

to quash the order dated 21st August, 2012 whereby the

representation of the applicant therein to adjust him as a

regular teacher came to be rejected. The said application came

to be rejected by the Tribunal, Cuttack Bench vide order dated

23rd September, 2013. While rejecting the said O.A. the

Tribunal, Cuttack Bench, directed a detailed enquiry to be

conducted through the Vigilance Department.

14. In the enquiry, it was found that the letter dated 7th July,

2009 of the Government of Orissa addressed to the Director to

adjust 137 Hindi Teachers as Assistant Teachers against

vacant posts was issued by suppressing its earlier letter dated

th September, 1998, whereby the letter dated 29th September,

1995 to adjust the Hindi Teachers was withdrawn. The

Government of Orissa, therefore, vide communication dated

26th February, 2014, directed the Director to remove 137 Hindi

Teachers, who were illegally adjusted by the concerned District

Inspector of Schools. Accordingly, the services of the

applicants/Teachers came to be terminated with effect from

15th March, 2014.

15. The applicants, being aggrieved by their termination

approached the High Court by way of Writ Petitions being Writ

Petition (Civil) No.6747 of 2014 and other writ petitions. The

High Court vide order dated 9th May, 2014, delivered in Writ

Petition (Civil) No.6747 of 2014, found that the termination was

done without following the principles of natural justice and as

such, set aside the same. However, liberty was granted to the

State to proceed against the petitioner therein (i.e., Ramesh

Kumar Mohanty) by complying with the Rules governing the

employment of the petitioner therein and the requirement of the

rule of natural justice. The High Court further directed that the

services/appointments of such of the teachers would be

continued till the decisions were taken by the authorities after

remand.

16. In pursuance thereof, the applicants/teachers were

reinstated on 15th December, 2014. In view of the liberty

granted by the High Court, show cause notices were issued to

the applicants on 22nd July, 2015. Some of the applicants filed

their replies and appeared for personal hearing. Many of them

chose not to do so. The services of the applicants came to be

terminated with effect from 22nd August, 2015. Being aggrieved,

a batch of Original Applications came to be filed before the

Tribunal. The same came to be allowed by the Tribunal,

Bhubaneswar Bench, vide order dated 18th May, 2017, thereby

quashing the show cause notices dated 22nd July, 2015 and

holding that the applicants were entitled to continue as regular

Government servants as third teacher/Assistant Teacher in

M.E. School with effect from 1st April, 2011.

17. Vide another order dated 30th January, 2018, the

Tribunal, Cuttack Bench, followed the abovementioned order

dated 18th May, 2017, passed by the Tribunal, Bhubaneswar

Bench and granted similar relief to 137 Hindi Teacher.

18. Being aggrieved by the judgments and orders dated 18th

May, 2017 and 30th January, 2018 of the Tribunal, the State of

Odisha filed writ petitions before the High Court. The same

were dismissed by the impugned judgment and order dated 20th

December, 2018. Being aggrieved thereby, the present appeals

by way of special leave are filed. Vide order dated 20th

September, 2019, this Court issued notice and granted stay to

the impugned judgment and order.

19. We have heard Shri Chander Uday Singh, learned Senior

Counsel appearing on behalf of the appellants, Shri Gaurav

Agrawal, learned counsel appearing on behalf of the

respondents/teachers and Shri R. Balasubramanian, learned

Senior Counsel appearing on behalf of the

Interveners/applicants.

20. Shri Chander Uday Singh, learned Senior Counsel

appearing on behalf of the appellants would submit that the

High Court has grossly erred in holding that the State had not

challenged the judgment and order dated 18th May, 2017,

passed by the Tribunal, Bhubaneswar Bench, in O.A. No.2266

of 2015 and other connected cases. He submitted that, as a

matter of fact, Writ Petition (Civil) No.6557 of 2018 was filed

challenging the judgment and order dated 18th May, 2017,

passed by the Tribunal in O.A. No.2266 of 2015 and other

connected cases. He submitted that the High Court has erred

in holding that the teachers had discharged service under the

State Government for more than two decades. He further

submitted that the Division Bench of High Court has erred in

holding that the State had meted out discriminatory treatment

amongst the teachers. He therefore submits that the

judgments and orders passed by the Tribunal as well as the

High Court are not sustainable in law and liable to be set aside.

21. Shri Singh further submitted that the appointments made

are contrary to Rules 5 and 6 of the said Rules and as such, the

appointments made, de hors the said Rules, cannot be

sustained. He further submitted that the Tribunal, while

delivering the judgments and orders dated 18th May, 2017 and

30th January, 2018, has failed to take into consideration the

earlier orders of the Tribunal dated 25th June, 2013 and 23rd

September, 2013, vide which the Tribunal had rejected similar

claims made by the Hindi Teachers. He further submits that,

as a matter of fact, Sri Antaryami Bal, whose O.A. (No. 2270 of

2015) has been allowed by the Tribunal vide judgment and

order dated 18th May, 2017, was the applicant in O.A. No.4029

(2) of 1996, which was rejected by the Tribunal, Cuttack Bench

by a wellreasoned judgment and order dated 12th April, 2012.

He therefore submits that the judgments and orders of the

Tribunal, which were impugned before the High Court, would

also not be sustainable on the ground of judicial propriety.

22. On facts, Shri Singh submitted that the

applicants/teachers have worked only between 27th August,

1996 and 4th November,1996; between 31st March, 2011 and

15th March, 2014; and lastly from 15th December, 2014 till 25th

August, 2015. The third period was on account of the orders

passed by the High Court. He therefore submits that, at the

most, the applicants/teachers have worked approximately for a

period of four years.

23. Shri Gaurav Agrawal, learned counsel, would submit that

though the M.E. Schools had a sanction of two posts, i.e., one

post of Headmaster and one post of Assistant Teacher; the

posts of Hindi Teacher were filled in by the Management on

nongrant basis. He submits that the said Rules would be

applicable only to the appointments made on grantinaid basis

and as such, to the post of Headmaster and to the one post of

Assistant Teacher. Since the applicants/teachers, who were

appointed on a third post, which was on nongrant basis, they

would not be governed by the said Rules.

24. Shri Agrawal further submits that in pursuance to the

order passed by the Division Bench of the High Court in O.J.C.

No. 3042 of 1993 dated 2nd July, 1993, the State had framed a

policy for absorption of these teachers as a onetime measure.

He submits that prior to their absorption, a detailed scrutiny

and enquiry was required to be done. He submits that if

applicants/teachers were absorbed in pursuance to the policy,

which was framed in pursuance to the directions of the High

Court, the termination would be bad in law. He therefore

submits that no interference would be warranted with the

judgments and orders passed by the Tribunal and the High

Court.

25. Shri R. Balasubramanian, learned Senior Counsel

appearing on behalf of the interveners/applicants would submit

that similar matters, i.e., O.A. No. 3420(C) of 2015 and other

connected matters have been allowed by the Tribunal vide order

dated 30th January, 2018. He submits that the order of the

Tribunal was confirmed/affirmed by the High Court vide order

dated 11th April, 2018 passed in Writ Petition (Civil) No.21661

of 2017. He submits that the Special Leave Petition (Civil) D.

No.40252 of 2018 challenging the same has been rejected by

this Court vide order dated 19th July, 2019. He therefore

submits that the issue has reached a finality and therefore, it

will not be permissible for the State to do away with the

services of the Assistant Teachers. He further submits that the

applicants/interveners in the present appeals, who have

succeeded before the Tribunal, the High Court, and this Court

have not been reinstated.

26. For appreciating the rival submissions, it will be necessary

to refer to Rules 5 and 6 of the said Rules, which read thus:

“5. Procedure of application to the Board and

appointment of Staff in aided institutions –

(1)The Secretary of the Managing

Committee or the Governing Body, as

the case may be, of an Aided

Educational Institution shall, on or

before the thirtyfirst day of August

every year apply to the Selection Board

with copy of each application to the

concerned Inspector of Schools in

respect of Schools [Director of Higher

Education] in respect of Colleges in

such manner as the Selection Board

may prescribe for selection of a

candidate for appointment in the

vacancy or vacancies in teaching post,

and the concerned Inspector of Schools

and [Director of Higher Education] shall

process the applications so received

and transmit the same to the Selection

Board by thirtieth day of September

every year with certificate of

genuineness of the vacancy or

vacancies along with a statement of the

vacancy position in the Educational

Institutions within his jurisdiction.

(2)The Selection Board shall, on receipt of

applications and certificates referred to

in Subrule () recommend a list of

candidates in order of merit strictly

according to the number of vacancies,

to the concerned Directors who shall

thereupon, allot candidates to the

concerned institutions strictly in order

of merit as per vacancy.

(3)Appointment shall be made by the

Managing Committee or the Governing

Body as the case may be, of the

candidates allotted under Subrule (2).

(4)[***]

(5)In the extent of nonacceptance of offer

of appointment by any candidate,

report to that effect shall be sent to the

[Director concerned] by the Secretary of

the Managing Committee or the

Governing Body, as the case may be,

and upon receipt of such intimation,

the name of the candidate shall be

struck off the list. The consequential

vacancies shall then be filled up by

candidates allotted by the Director

concerned from an additional list

obtained from the Selection Board from

the list of persons in the waiting list

with it.

(6)If instance of default in the

appointment of candidates allotted by

the Director, come to his notice, he

shall be competent to withhold the

individual teacher’s cost of the grantinaid to be paid to the institution

concerned and to take steps to

supersede the Managing Committee or

the Governing Body, as the case may

be, under Section 11 of the Act.

(7)Where a vacancy was not foreseen by

thirtyfirst day of August the Secretary

of the Managing Committee or the

Government Body, as the case may be,

shall apply to the Selection Board

through the concerned Inspector or the

Director, as the case may be, for

allotment of candidates whereupon, the

Selection Board shall recommend

candidates out of the waiting list

maintained by it, through the

concerned Director.

(8)It shall not be necessary to apply to the

Selection Board for appointments to

vacancies [for a period of six months or

till the date of receipt of the list referred

to in Subrule (2) from the Selection

Board whichever is earlier] and all such

appointments may be made by the

Managing Committee or the

Government Body, as the case may be,

with the prior approval of the Inspector

in respect of an Institution other than a

College and of the Director in respect of

a College.

[Provided that where it appears to the

Inspector or the Director, as the case

may be, that the appointment to a

vacancy or vacancies in accordance

with the provisions of this rule is being

circumvented by making appointments

in pursuance to this Subrule, the

Director suo motu or on the receipt of a

report from the Inspector as the case

may be, shall be competent to proceed

against the Managing Committee or the

Governing Body under Section 11 of the

Act.]

(9)Notwithstanding anything contained in

Subrule (8), it shall be competent for

the Managing Committee or the

Governing Bode, as the case may be to

extend in terms of appointment beyond

six months till the recommendation of

the Selection Board is received with the

prior approval of Government.

6. Procedure of selection of candidates –

(1) The Selection Board shall, at such

intervals as it deems proper call for

applications for various posts in respect

of which vacancies are likely to arise in

the course of the next one year in such

manner as may be determined in the

regulation of the Selection Board.

(2) The Selection Board shall conduct

examinations including a viva voce

examination of any candidate or all

candidates with a view to determine

their merit and suitability in the matter

appointed in its regulations.”

27. Perusal of the subrule (1) of Rule 5 of the said Rules

would show that the Secretary of the Managing Committee or

the Governing Body, as the case may be, of an Aided

Educational Institution, is required to apply to the Selection

Board on or before the thirtyfirst day of August every year with

copy of each application to the concerned Inspector of Schools

and Director of Higher Education. The Inspector of Schools

and the Director of Higher Education are required to process

the applications so received and transmit the same to the

Selection Board by thirtieth day of September every year with

certificate of genuineness of the vacancy/vacancies. Perusal of

subrule (2) of Rule 5 of the said Rules would show that the

Selection Board shall recommend a list of candidates in order of

merit strictly according to the number of vacancies to the

concerned Directors, who shall thereupon allot candidates to

the concerned institutions strictly in order of merit as per

vacancy.

28. Perusal of subrule (6) of Rule 5 of the said Rules would

reveal that if the Management defaults in making appointment

of candidates allotted by the Director, he shall be competent to

withhold the individual teacher’s cost of the grantinaid to be

paid to the institution concerned. He is also entitled to take

steps to supersede the Managing Committee or the Governing

Body, as the case may be. Under subrule (8) of Rule 5 of the

said Rules, the relaxation is granted for filling up the vacancies

for a period of six months or till the date of receipt of the list as

referred to in subrule (2) of Rule 5 of the said Rules. However,

the same has to be with the prior approval of the Inspector in

respect of an institution other than a College and of the

Director in respect of a College.

29. Rule 6 of the said Rules prescribes the procedure for

selection of candidates.

30. It could thus be clearly seen that a detailed selection

procedure is prescribed for making appointment of vacancies

arising in Aided Educational Institution.

31. Perusal of the approval order dated 12th September, 1980

of the Government of Orissa, Education and Youth Service

Department, would reveal that for each M.E. School, only two

posts, i.e., one post of a Trained Graduate Headmaster and one

post of a Trained Matric Teacher, have been sanctioned. The

order clearly provides that no other post of teaching and nonteaching staff would be permitted.

32. It is not in dispute that the appointment of all the

applicants/respondents/teachers have been made directly by

the respective Management without following the procedure as

prescribed under the Rules/Statute. It is a trite law that the

appointments made in contravention of the statutory provisions

are void ab initio. Reference in this respect could be made to

the judgments of this Court in the cases of Ayurvidya

Prasarak Mandal and another vs. Geeta Bhaskar Pendse

(Mrs) and others1

, J & K Public Service Commission and

others vs. Dr. Narinder Mohan and others2

, Official

Liquidator vs. Dayanand and others3

, and Union of India

and another vs. Raghuwar Pal Singh4

33. We are unable to accept the contention raised by Shri

Gaurav Agrawal and Shri R. Balasubramanian that since the

applicants/teachers were appointed on posts which were not on

grantinaid basis, the said Rules are not applicable. The said

Rules would clearly show that they are applicable to Aided

Educational Institution. Undisputedly, the institutions in

which the applicants/teachers were appointed, were recognized

as Aided M.E. Schools vide G.O. dated 12th September, 1980. It

1 (1991) 3 SCC 246

2 (1994) 2 SCC 630

3 (2008) 10 SCC 1

4 (2018) 15 SCC 463

is also not in dispute that the appointments so made were

subsequent to the schools being recognized as Aided Schools.

As such, the contention in that regard deserves to be rejected.

34. We further find that the Tribunal, while delivering the

judgment and order dated 18th May, 2017 and 30th January,

2018, has failed to take into consideration the earlier orders

dated 25th June, 2013 and 23rd September, 2013 delivered by

the same Tribunal. In the said orders of 2013, the Tribunal

had elaborately considered the provisions of the said Rules and

found no merit in the contentions raised on behalf of the

applicants therein. The orders passed by the Tribunal ignoring

its earlier orders, which were passed elaborately considering

the scheme of the said Rules, are totally contrary to the wellestablished norms of judicial propriety. The situation becomes

graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF

2015 by its order dated 18th May, 2017 filed by Sri Antaryami

Bal, whose earlier application being O.A. No. 4029(2) of 1996

with regard to the same relief was rejected by the Tribunal vide

its earlier order dated 12th April, 2012. The orders passed by

the Tribunal are, therefore, totally unsustainable in view of the

law laid down by this Court in the case of Official Liquidator

vs. Dayanand and others (supra). Not only this, the Tribunal

as well as the High Court has failed to take into consideration

the order passed by this Court on 2nd December, 1996 in Civil

Appeal No. 15712 of 19965

35. The impugned order passed by the High Court depicts

total nonapplication of mind. Whereas the cause title would

itself show that a Writ Petition (Civil) No.6557 of 2018 is

disposed of by the impugned judgment, the High Court

observed that the order dated 18th May, 2017, passed by the

Tribunal in O.A. No.2266 of 2015, has not been challenged by

the State. Whereas the teachers have hardly worked for four

years and a substantial part thereof on account of interim

orders passed by the High Court, the High Court goes on to

5 (1997) 2 SCC 635

observe that the teachers have worked for a period of more than

20 years. No reasons, leave aside sound reasons, are reflected

in the impugned order while dismissing the writ petitions filed

by the State.

36. That leaves us with the submission of Shri R.

Balasubramanian, learned Senior Counsel that since the view

taken by the Tribunal has been affirmed by the High Court and

the Special Leave Petition challenging the same has been

dismissed, the view of the Tribunal has become final. In this

respect, reliance could be placed on the judgment of this Court

in the case of Kunhayammed and others vs. State of Kerala

and another6

, wherein this Court has held as under:

“27. A petition for leave to appeal to this

Court may be dismissed by a nonspeaking

order or by a speaking order. Whatever be

the phraseology employed in the order of

dismissal, if it is a nonspeaking order,

i.e., it does not assign reasons for

dismissing the special leave petition, it

would neither attract the doctrine of

6 (2000) 6 SCC 359

merger so as to stand substituted in

place of the order put in issue before it

nor would it be a declaration of law by

the Supreme Court under Article 141 of

the Constitution for there is no law

which has been declared. If the order of

dismissal be supported by reasons then also

the doctrine of merger would not be attracted

because the jurisdiction exercised was not

an appellate jurisdiction but merely a

discretionary jurisdiction refusing to grant

leave to appeal. We have already dealt with

this aspect earlier. Still the reasons stated by

the Court would attract applicability of

Article 141 of the Constitution if there is a

law declared by the Supreme Court which

obviously would be binding on all the courts

and tribunals in India and certainly the

parties thereto. The statement contained in

the order other than on points of law would

be binding on the parties and the court or

tribunal, whose order was under challenge

on the principle of judicial discipline, this

Court being the Apex Court of the country.

No court or tribunal or parties would have

the liberty of taking or canvassing any view

contrary to the one expressed by this Court.

The order of Supreme Court would mean

that it has declared the law and in that light

the case was considered not fit for grant of

leave. The declaration of law will be governed

by Article 141 but still, the case not being

one where leave was granted, the doctrine of

merger does not apply. The Court sometimes

leaves the question of law open. Or it

sometimes briefly lays down the principle,

may be, contrary to the one laid down by the

High Court and yet would dismiss the

special leave petition. The reasons given are

intended for purposes of Article 141. This is

so done because in the event of merely

dismissing the special leave petition, it is

likely that an argument could be advanced

in the High Court that the Supreme Court

has to be understood as not to have differed

in law with the High Court.”

[emphasis supplied]

37. It is thus clear that a mere dismissal of the Special Leave

Petition would not mean that the view of the High Court has

been approved by this Court. As such, the contention in that

regard is rejected.

38. We are, therefore, of the considered view that the Tribunal

has erred in allowing the Original Applications of the

applicants/teachers. Similarly, the High Court has also erred

in dismissing the petitions filed by the appellants.

39. In the result, the appeals are allowed. The impugned

judgment and order of the Division Bench of the High Court

dated 20th December, 2018 passed in a batch of writ petitions

and the judgments and orders dated 18th May, 2017 and 30th

January, 2018 of the Tribunal passed in a batch of Original

Applications are quashed and set aside. The Original

Applications filed by the respondents/applicants before the

Tribunal are dismissed.

40. All pending applications, including applications for

intervention, shall stand disposed of. There shall be no order

as to costs.

…..….......................J.

[L. NAGESWARA RAO]

…….........................J.

[B.R. GAVAI]

NEW DELHI;

APRIL 20, 2022

Whether the allegations are true or untrue, would have to be decided in the trial. -It is a well established proposition of law that a criminal prosecution, if otherwise justified and based upon adequate evidence, does not become vitiated on account of mala fides or political vendetta of the first informant or complainant.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO. 2953 OF 2022

Ramveer Upadhyay & Anr. ...Petitioners

Versus

State of U.P. & Anr. ...Respondents

J U D G M E N T

Indira Banerjee, J.

This special leave petition is against a final judgment and order dated

th March 2022 passed by the High Court of Judicature at Allahabad,

dismissing the application filed by the Petitioner under Section 482 of the

Criminal Procedure Code, 1973 being case No.29704 of 2021, whereby the

Petitioner had challenged the order dated 17th September 2021 passed by

the 4th Additional District and Sessions Judge, Hathras taking cognizance of

the complaint filed by the Respondent No.2 under Section 365 read with

Section 511 of the Indian Penal Code, 1860 (IPC) and Section 3(1)(Dha) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989,

hereinafter referred to as “the Atrocities Act”.

2. Mr. Ranjit Kumar, Senior Advocate appearing on behalf of the

Petitioners opened his arguments contending that this case is a classic

example of malicious prosecution of the petitioners, who have been

embroiled in a false criminal case, due to political animosity. The complaint

in the Court of the 2nd Additional District and Sessions Judge/Special

Judge under the Atrocities Act, under section 156 (3) of the CrPC , which

has given rise to these proceedings, has been filed by the Respondent No. 2

at the instance of Devendra Agarwal, ExMLA , a political opponent of the

Petitioner No. 1. The Petitioner No. 1 and the said Devendra Aggarwal had

fought elections against each other several times.

3. Earlier, on or about 1st January 2010, Smt. Meera Devi, wife of the

Respondent No.2 had filed a complaint before the District Magistrate,

Mahamaya Nagar District (now Hathras District) stating that the

Respondent No.2 had been abducted by the brothers of the Petitioner No. 1,

to forcibly make him vote in favour of their party, in the MLC election of

2010. In the said complaint it was alleged that the Petitioner had abused the

Respondent No.2 by his caste, using filthy language.

4. On the same day, that is, 1st January 2010, Devendra Aggarwal wrote

a letter to the District Magistrate for release of the Respondent No.2. In the

aforesaid letter, it was stated that the Petitioners had abused the

Respondent No.2 in filthy language by reference to his caste.

5. On 2nd January 2010, Meera Devi filed an application in the Court of

the Judicial Magistrate, Sadabad, Hathras under Section 156(3) of the Code

of Criminal Procedure (Cr.P.C ), being Complaint No. 412 of 2010 for

directions on the Station House Officer (SHO) at Chandappa Police Station

to register her Complaint of abduction of her husband.

6. A complaint was thereafter registered, pursuant to which Crime Case

No. 17/2010 was started. The case was investigated by the Circle Inspector

Sadabad, Hathras. After investigation, the Police filed a final report of

closure of the case, opining that no incident of abduction, as alleged had

taken place, and the complaint had been filed out of political animosity.

7. Meera Devi filed a Protest Petition which was dismissed. The High

Court did not interfere with the order of dismissal of her Protest Petition.

Meera Devi approached this Court. Pursuant to the orders of this court,

further investigation was held by the CB CID. The Investigating Officer filed

a final report dated 17.10.2018 in favour of the Petitioners. Meera Devi filed

a Protest Petition. By an order dated 5th September 2020, the Special Judge

under the Atrocities Act, Hathras rejected the Protest Petition filed by Meera

Devi in Case No. 17/2010.

8. In February 2017, the Petitioner had contested the Assembly elections

from Sadabad Constituency. Mr. Devendra Aggarwal also contested the

election from the same constituency as a candidate of a rival political party.

It is alleged that, on 8th February 2017, when the Petitioner No 1’s son was

campaigning for the Petitioner No 1, Devendra Aggarwal, who was then a

sitting MLA of the ruling party, attacked the Petitioner No 1’s son and his

supporters and opened fire indiscriminately.

9. One Pushpendra Singh, a supporter of the Petitioner No 1, was killed

in the incident. Pushpendra’s father, Ramhari Sharma lodged an FIR,

arraigning Devendra Aggarwal as Accused No.1, pursuant to which a

criminal case was started against Devendra Aggarwal and others, inter alia,

under Section 302 of the Indian Penal Code.

10. It is stated that since Devendra Aggarwal was the sitting MLA of the

ruling party, the police did not take action to arrest him. The father of the

deceased Pushpendra, Ramhari Sharma filed a Criminal Misc. Writ Petition

No.2739/2017 in the High Court praying for action against Devendra

Aggarwal.

11. On 26th October 2017, the Respondent No.2 filed an application in the

Court of the Additional Sessions Judge/Special Judge SC/ST Act, Hathras

under Section 156(3) of the Cr.P.C alleging that the Petitioner No.1 along

with his Personal Assistant, Ranu Pandit, being the Petitioner No.2 and 67

other persons had abused him in filthy language and asked his associates to

drag him into the car which they could not do, as a crowd had gathered, and

there was resistance put up. The Respondent No.2 prayed for direction on

the SHO, Chandappa Police Station to register the case against the

Petitioners.

12. The relevant averments in the said complaint are extracted

hereinbelow for convenience:

“1. The applicant belongs to “Dhobi’ caste – a scheduled caste and is

former BDC Member.

2. ….

3. That on 01.09.2017, at about 2.45 or 3 P.M. in the afternoon, the

opposite party no.1 Ramveer Upadhyay came to VillageBisana along

with his convoy of vehicles and after seeing the Complainant started

abusing of his caste and on the road, he said that Saley dhobi you had

forgotten your position and your wings have come out and you are

running up to Supreme Court. You will be sent at a place from where

you will never come back. When the Complainant said you are doing

your work and I am doing my work, Ramveer Upadhyay said to his

associates that pull him and put him in the car, then opposite party

no.2 Ranu Pandit and 67 other unknown persons, who can be

identified by face, dragged the Complainant and with the intention to

kill tried to kidnap him but due to gathering of people on the road and

due to resistance shown by Annu R/o Jindpatti, Bisana, Pradeep R/o

Gambhirpatti, Bisana, they were not successful and went towards

Hathras in their vehicles. Due to this incident an environment of fear

and terror was created in the village.”

13. Pursuant to the aforesaid application, a case was registered and

numbered Complaint Case No.19/2018. The Respondent No.2 was

examined under Section 202 of the Cr.P.C. The statement of the

Respondent No. 2 being the complainant was recorded under Section 200 of

the Cr.P.C. in the Court of the Additional Sessions Judge/Special Judge,

SC/ST Act, Hathras. The statements of one Annu son of Rukamal and one

Yogesh Gupta, son of Dhaniram Gupta were also recorded in the same

Court under Section 200 Cr.P.C.

14. In the meanwhile, in Writ Petition (Civil) No.699/2016 titled Ashwini

Kumar Upadhayay v. Union of India, a threeJudge Bench of this Court

presided over by the Chief Justice, passed an order dated 4.12.2018, taking

notice of the fact that there were 4122 cases pending against legislators

including former legislators, out of which 2324 cases were against sitting

legislators. A chart, presented in Court by the learned Amicus Curiae,

showed that there were 430 cases involving life sentence pending against

sitting as well as former legislators.

15. To expedite the disposal of the cases, this Court requested each High

Court to assign/allocate criminal cases involving former and sitting

legislators to as many as Sessions Courts and Magisterial Courts as each

High Court might consider fit and expedient. Pursuant to administrative

directions issued by the High Court, and pursuant to the directions of this

Court, Complaint Case No.19/2018 was transferred to the Additional

District and Sessions Judge Court No.4, Hathras, as the Petitioner No.1 was

a legislator/former legislator.

16. On being prima facie satisfied that the complaint case No.19/2018

made out a prime facie case against the Petitioners, the Additional District

and Sessions Judge, Court No.4, Hathras passed an order dated 17th

September 2021, taking cognizance of the charges against the Petitioners

and issuing summons to the Petitioners.

17. Aggrieved by the aforesaid order dated 17th September 2021, the

Petitioners filed an application under Section 482 of the Cr.P.C in the High

Court and prayed that entire proceedings in Complaint Case No. 19/2018 as

well as the cognizance order dated 17th September 2021 be quashed.

18. By an order dated 5th January 2022, the High Court admitted the

application under Section 482 of the Cr.P.C. and stayed further proceedings

in Complaint Case No.19/2018 pending in the Court of Additional District

and Sessions Judge, Court No.4, Hathras.

19. However, on 7th March 2022, the High Court passed the impugned

judgment and order rejecting the application filed by the Petitioners under

Section 482 of the Cr.P.C.

20. Mr. Ranjit Kumar, learned Senior Advocate appearing on behalf of the

Petitioners questioned the jurisdiction of the Additional District and

Sessions Judge, Court No.2, Hathras, to take cognizance of the offence in

Complaint Case No.19/2018.

21. Emphasizing Section 14 of the Atrocities Act, Mr. Ranjit Kumar

argued that only the Special Judge under the Atrocities Act was competent

to pass an order for issuance of summons. He argued that the order of the

Additional District and Sessions Judge, Court No.2, Hathras being without

jurisdiction the High Court should have quashed the same in exercise of its

power under Section 482 of the Cr.P.C. Mr. Ranjt Kumar also argued that

Complaint Case No.19/2018 patently a case of malicious prosecution which

stemmed from political rivalry and was in gross abuse of the process of

Court.

22. In Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari

and Ors.1

, Cited by Mr. Siddharth Dave, learned senior counsel, appearing

on behalf of the Respondent No.2, this Court rejected the contention that

only Special Court could take cognizance of offences under the Atrocities Act

and held:

23. Therefore, the issue/question posed for the consideration of this

Court is, whether in a case where cognizance is taken by the learned

Magistrate and thereafter the case is committed to the learned Special

Court, whether entire criminal proceedings can be said to have been

vitiated considering the second proviso to Section 14 of the Atrocities

Act which was inserted by Act 1 of 2016 w.e.f. 26.1.2016?

24. While considering the aforesaid issue/question, legislative history

of the relevant provisions of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, more particularly, Section 14 preamendment and post amendment is required to be considered. Section

14 as stood preamendment and post amendment reads as under:

........

Provided that in Districts where less number of cases under this Act is

recorded, the State Government shall, with the concurrence of the Chief

Justice of the High Court, by notification in the Official Gazette, specify for

such Districts, the Court of Session to be a Special Court to try the offences

under this Act;

Provided further that the Courts so established or specified shall

have power to directly take cognizance of offences under this Act.”

******

28. Considering the aforesaid legislative history which brought to

insertion of proviso to Section 14 of the Atrocities Act, by which, even the

Special Court so established or specified for the purpose of providing for

speedy trial the power to directly to take cognizance of offences under

the Atrocities Act, 1989, the issue/question posed whether in a case

where for the offences under Atrocities Act, the cognizance is taken by

the learned Magistrate and thereafter the case is committed to the Court

of Sessions/Special Court and cognizance is not straightway taken up

by the learned Special Court/Court of Session, whether entire criminal

proceedings for the offences under the Atrocities Act, 1989 can be said

1 2021 SCC Online SC 974

to have been vitiated, as so observed by the High Court in the impugned

judgment and order ?

29. On fair reading of Sections 207, 209 and 193 of the Code of

Criminal Procedure and insertion of proviso to Section 14 of the

Atrocities Act by Act No. 1 of 2016 w.e.f. 26.1.2016, we are of the

opinion that on the aforesaid ground the entire criminal proceedings

cannot be said to have been vitiated. Second proviso to Section 14 of the

Atrocities Act which has been inserted by Act 1 of 2016 w.e.f. 26.1.2016

confers power upon the Special Court so established or specified for the

purpose of providing for speedy trial also shall have the power to

directly take cognizance of the offences under the Atrocities Act.

Considering the object and purpose of insertion of proviso to Section 14,

it cannot be said that it is not in conflict with the Sections 193, 207 and

209 of the Criminal Procedure Code, 1973. It cannot be said that it

takes away jurisdiction of the Magistrate to take cognizance and

thereafter to commit the case to the Special Court for trial for the

offences under the Atrocities Act. Merely because, learned Magistrate

has taken cognizance of the offences and thereafter the trial/case has

been committed to Special Court established for the purpose of providing

for speedy trial, it cannot be said that entire criminal proceedings

including FIR and chargesheet etc. are vitiated and on the aforesaid

ground entire criminal proceedings for the offences under Sections 452,

323, 325, 504, 506(2) and 114 of the Penal Code, 1860 and under

Section 3(1)(x) of the Atrocities Act are to be quashed and set aside. It

may be noted that in view of insertion of proviso to Section 14 of the

Atrocities Act and considering the object and purpose, for which, the

proviso to Section 14 of the Atrocities Act has been inserted i.e. for the

purpose of providing for speedy trial and the object and purpose stated

herein above, it is advisable that the Court so established or specified in

exercise of powers under Section14, for the purpose of providing for

speedy trial directly take cognizance of the offences under the Atrocities

Act. But at the same time, as observed herein above, merely on the

ground that cognizance of the offences under the Atrocities Act is not

taken directly by the Special Court constituted under Section 14 of the

Atrocities Act, the entire criminal proceedings cannot be said to have

been vitiated and cannot be quashed and set aside solely on the ground

that cognizance has been taken by the learned Magistrate after

insertion of second proviso to Section 14 which confers powers upon the

Special Court also to directly take cognizance of the offences under the

Atrocities Act and thereafter case is committed to the Special

Court/Court of Session.

30. In support of the above conclusion, the words used in second

proviso to Section 14 are required to be considered minutely. The words

used are “Court so established or specified shall have power to

directly take cognizance of the offences under this Court”. The

word “only” is conspicuously missing. If the intention of the legislature

would have to confer the jurisdiction to take cognizance of the offences

under the Atrocities Act exclusively with the Special Court, in that case,

the wording should have been “that the Court so established or

specified only shall have power to directly take cognizance of

offences under this Act”. Therefore, merely because now further and

additional powers have been given to the Special Court also to take

cognizance of the offences under the Atrocities Act and in the present

case merely because the cognizance is taken by the learned Magistrate

for the offences under the Atrocities Act and thereafter the case has

been committed to the learned Special Court, it cannot be said that

entire criminal proceedings have been vitiated and same are required to

be quashed and set aside.”

23. In view of the judgment of this Court in Shantaben Bhurabhai

Bhuriya (supra), the Argument of Mr. Ranjit Kumar that the Additional

District Judge and Sessions Judge, Court No.4 Hathras had no jurisdiction

to take cognizance or issue summons/orders cannot be sustained.

24. There was apparently political rivalry between the Petitioner No.1 and

Devendra Aggarwal. However, Complaint Case No. 19/2018 has not been

lodged against the Petitioners, by Devendra Aggarwal, but by the

Respondent No.2, a Dhobi by caste, which is a scheduled caste. It cannot

be said that the allegations in the complaint do not make out offence under

the Atrocities Act. It is specifically alleged that the Petitioners had abused

the Respondent No.2 in filthy language by reference to his caste. The

allegations in the Complaint Case No.19 of 2018, if established, could result

in conviction under the relevant subsections of Section 3(1) of the Atrocities

Act.

25. Respondent No.2 being an employee of Devendra Aggarwal, it is

possible that Complaint Case No.19/2018 may have been prompted by

political vendetta against the Petitioner No.1. However, since as observed

above, the allegations in the complaint case make out an offence under

Section 3 of the Atrocities Act, it would not be proper to nip the complaint in

the bud, more so, when there are statements recorded in Court under

Section 200 of the Cr.P.C. The possibility of retaliation on the part of the

Petitioners by the acts alleged in the complaint, after closure of the earlier

complaint No.17 of 2010 cannot be ruled out. Quashing the criminal

proceedings at the very inception might result in injustice.

26. Section 482 of the Cr.P.C provides:

“482. Saving of inherent powers of High Court.—Nothing

in this Code shall be deemed to limit or affect the inherent

powers of the High Court to make such orders as may be

necessary to give effect to any order under this Code, or to

prevent abuse of the process of any Court or otherwise to

secure the ends of justice.”

27. Even though, the inherent power of the High Court under Section 482

of the Cr.P.C., to interfere with criminal proceedings is wide, such power has

to be exercised with circumspection, in exceptional cases. Jurisdiction

under Section 482 of the Cr.P.C is not to be exercised for the asking.

28. In Monica Kumar (Dr.) v. State of U.P2

., this Court held that

inherent jurisdiction under Section 482 of the Cr.P.C has to be exercised

2 (2008) 8 SCC 781

sparingly, carefully and with caution and only when such exercise is

justified by the tests specifically laid down in the section itself.

29. In exceptional cases, to prevent abuse of the process of Court, the

High Court might in exercise of its inherent powers under Section 482

quash criminal proceedings. However, interference would only be justified

when complaint did not disclose any offence, or was patently frivolous,

vexatious or oppressive, as held by this Court in Mrs. Dhanalakshmi v. R.

Prasanna Kumar3

30. The fact that the complaint may have been initiated by reason of

political vendetta is not in itself ground for quashing the criminal

proceedings, as observed by Bhagwati, CJ in Sheonandan Paswan v.

State of Bihar and Others4

. It is a well established proposition of law that

a criminal prosecution, if otherwise justified and based upon adequate

evidence, does not become vitiated on account of mala fides or political

vendetta of the first informant or complainant. Though the view of

Bhagawti, CJ in Sheonandan Paswan (supra) was the minority view, there

was no difference of opinion with regard to this finding. To quote Krishna

Iyer, J., in State of Punjab v. Gurdial Singh5

, “if the use of power is of

fulfilment of a legitimate object the actuation or catalysation by malice is not

legicidal.”

3 AIR 1990 SC 494

4 (1987) 1 SCC 288

5 (1980) 2 SCC 471

31. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and

Ors.6

A threeJudge Bench of this Court held:

“6. It may be noticed that Section 482 of the present Code is the

ad verbatim copy of Section 561A of the old Code. This

provision confers a separate and independent power on the High

Court alone to pass orders ex debito justitiae in cases where

grave and substantial injustice has been done or where the

process of the court has been seriously abused. It is not merely a

revisional power meant to be exercised against the orders

passed by subordinate courts. It was under this section that in

the old Code, the High Courts used to quash the proceedings or

expunge uncalled for remarks against witnesses or other

persons or subordinate courts. Thus, the scope, ambit and range

of Section 561A (which is now Section 482) is quite different

from the powers conferred by the present Code under the

provisions of Section 397. It may be that in some cases there

may be overlapping but such cases would be few and far

between. It is well settled that the inherent powers under

Section 482 of the present Code can be exercised only when no

other remedy is available to the litigant and not where a specific

remedy is provided by the statute. Further, the power being an

extraordinary one, it has to be exercised sparingly. If these

considerations are kept in mind, there will be no inconsistency

between Sections 482 and 397(2) of the present Code.

7. The limits of the power under Section 482 were clearly

defined by this Court in Raj Kapoor v. State [(1980) 1 SCC 43 :

1980 SCC (Cri) 72] where Krishna Iyer, J. observed as follows:

[SCC para 10, p. 47: SCC (Cri) p. 76]

“Even so, a general principle pervades this branch of law when a

specific provision is made: easy resort to inherent power is not right

except under compelling circumstances. Not that there is absence of

jurisdiction but that inherent power should not invade areas set

apart for specific power under the same Code.”

. Another important consideration which is to be kept in mind is

as to when the High Court acting under the provisions of Section

6(1983) 1 SCC 1

482 should exercise the inherent power insofar as quashing of

criminal proceedings are concerned. This matter was gone into

in greater detail in Smt Nagawwa v. Veeranna Shivalingappa

Konjalgi [(1976) 3 SCC 736 : 1976 SCC (Cri) 507 : 1976 Supp

SCR 123 : 1976 Cri LJ 1533] where the scope of Sections 202

and 204 of the present Code was considered and while laying

down the guidelines and the grounds on which proceedings

could be quashed this Court observed as follows: [SCC para 5,

p. 741 : SCC (Cri) pp. 51112]

“Thus it may be safely held that in the following cases an order

of the Magistrate issuing process against the accused can be

quashed or set aside:

(1) where the allegations made in the complaint or the

statements of the witnesses recorded in support of the same taken

at their face value make out absolutely no case against the accused

or the complaint does not disclose the essential ingredients of an

offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently

absurd and inherently improbable so that no prudent person can

ever reach a conclusion that there is sufficient ground for proceeding

against the accused;

(3) where the discretion exercised by the Magistrate in issuing

process is capricious and arbitrary having been based either on no

evidence or on materials which are wholly irrelevant or

inadmissible; and

(4) where the complaint suffers from fundamental legal defects,

such as, want of sanction, or absence of a complaint by legally

competent authority and the like.

The cases mentioned by us are purely illustrative and provide

sufficient guidelines to indicate contingencies where the High Court

can quash proceedings.”

9. Same view was taken in a later decision of this Court

in Sharda Prasad Sinha v. State of Bihar [(1977) 1 SCC 505 :

1977 SCC (Cri) 132 : (1977) 2 SCR 357 : 1977 Cri LJ 1146]

where Bhagwati, J. speaking for the Court observed as follows:

[SCC para 2, p. 506 : SCC (Cri) p. 133]

“It is now settled law that where the allegations set out in the

complaint or the chargesheet do not constitute any offence, it is

competent to the High Court exercising its inherent jurisdiction

under Section 482 of the Code of Criminal Procedure to quash

the order passed by the Magistrate taking cognizance of the

offence.

10. It is, therefore, manifestly clear that proceedings against an

accused in the initial stages can be quashed only if on the face

of the complaint or the papers accompanying the same, no

offence is constituted. In other words, the test is that taking the

allegations and the complaint as they are, without adding or

subtracting anything, if no offence is made out then the High

Court will be justified in quashing the proceedings in exercise of

its powers under Section 482 of the present Code.”

32. As held by this Court in State of Andhra Pradesh v. Gourieshetty

Mahesh7

, the High Court, while exercising jurisdiction under Section 482 of

the Cr.P.C, would not ordinarily embark upon an enquiry into whether the

evidence is reliable or not or whether there is reasonable possibility that the

accusation would not be sustained.

33. In Paramjeet Batra v. State of Uttrakhand8

, this Court held:

“12. While exercising its jurisdiction under Section 482 of the

Code the High Court has to be cautious. This power is to be used

sparingly and only for the purpose of preventing abuse of the

process of any court or otherwise to secure ends of justice.

Whether a complaint discloses a criminal offence or not depends

14 upon the nature of facts alleged therein. Whether essential

ingredients of criminal offence are present or not has to be judged

by the High Court. …”

34. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao

Angre9

, a threeJudge Bench of this Court summarized the law with regard

7 (2010) 6 SCC 588

8 (2013) 11 SCC 673

9 (1988) 1 SCC 692

to quashing of criminal proceedings under Section 482 of the Cr.P.C. This

Court held:

“The legal position is well settled that when a prosecution at the

initial stage is asked to be quashed, the test to be applied by the

court is as to whether the uncontroverted allegations as made prima

facie establish the offence. It is also for the court to take into

consideration any special features which appear in a particular

case to consider whether it is expedient and in the interest of justice

to permit a prosecution to continue. This is so on the basis that the

court cannot be utilised for any oblique purpose and where in the

opinion of the court chances of an ultimate conviction are bleak and,

therefore, no useful purpose is likely to be served by allowing a

criminal prosecution to continue, the court may while taking into

consideration the special facts of a case also quash the proceeding

even though it may be at a preliminary stage.”

35. In Inder Mohan Goswami v. State of Uttaranchal10, this Court

observed:

“46. The court must ensure that criminal prosecution is not

used as an instrument of harassment or for seeking private

vendetta or with an ulterior motive to pressurise the accused.

On analysis of the aforementioned cases, we are of the

opinion that it is neither possible nor desirable to lay down an

inflexible rule that would govern the exercise of inherent

jurisdiction. Inherent jurisdiction of the High Courts under

Section 482 CrPC though wide has to be exercised sparingly,

carefully and with caution and only when it is justified by the

tests specifically laid down in the statute itself and in the

aforementioned cases. In view of the settled legal position, the

impugned judgment cannot be sustained.”

10 (2007) 12 SCC 1

36. In Kapil Agarwal & Ors. V. Sanjay Sharma & Others11, this Court

observed that Section 482 of the Cr.P.C. is designed to achieve the purpose

of ensuring that criminal proceedings are not permitted to generate into

weapons of harassment.

37. In State of Haryana and Ors. v. Bhajan Lal and Ors.12, this Court

held:

“102. In the backdrop of the interpretation of the various

relevant provisions of the Code under Chapter XIV and of the

principles of law enunciated by this Court in a series of

decisions relating to the exercise of the extraordinary power

under Article 226 or the inherent powers under Section 482 of

the Code which we have extracted and reproduced above, we

give the following categories of cases by way of illustration

wherein such power could be exercised either to prevent

abuse of the process of any court or otherwise to secure the

ends of justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelised and

inflexible guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein such power

should be exercised.

(1) Where the allegations made in the first information report

or the complaint, even if they are taken at their face value and

accepted in their entirety do not prima facie constitute any

offence or make out a case against the accused.

(2) Where the allegations in the first information report and

other materials, if any, accompanying the FIR do not disclose

a cogizable offence, justifying an investigation by police

officers under Section 156(1) of the Code except under an

order of a Magistrate within the purview of Section 155(2) of

the Code.

11 (2021) 5 SCC 524

121992 Suppl (1) SCC 335

(3) Where the uncontroverted allegations made in the FIR or

complaint and the evidence collected in support of the same

do not disclose the commission of any offence and make out a

case against the accused.

(4) Where, the allegations in the FIR do not constitute a

cognizable offence but constitute only a noncognizable

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated under

Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a

criminal proceeding is instituted) to the institution and

continuance of the proceedings and/or where there is a

specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with

mala fide and/or where the proceeding is maliciously

instituted with an ulterior motive for wreaking vengeance on

the accused and with a view to spite him due to private and

personal grudge.

103. We also give a note of caution to the effect that the power

of quashing a criminal proceeding should be exercised very

sparingly and with circumspection and that too in the rarest of

rare cases; that the court will not be justified in embarking

upon an enquiry as to the reliability or genuineness or

otherwise of the allegations made in the FIR or the complaint

and that the extraordinary or inherent powers do not confer

an arbitrary jurisdiction on the court to act according to its

whim or caprice.

37. Ends of justice would be better served if valuable time of the Court is

spent on hearing appeals rather than entertaining petitions under Section

482 at an interlocutory stage which might ultimately result in miscarriage of

justice as held in Hamida v. Rashid @ Rasheed and Others13

39. In our considered opinion criminal proceedings cannot be nipped

in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C.

only because the complaint has been lodged by a political rival. It is

possible that a false complaint may have been lodged at the behest of a

political opponent. However, such possibility would not justify

interference under Section 482 of the Cr.P.C. to quash the criminal

proceedings. As observed above, the possibility of retaliation on the part

of the petitioners by the acts alleged, after closure of the earlier criminal

case cannot be ruled out. The allegations in the complaint constitute

offence under the Attrocities Act. Whether the allegations are true or

untrue, would have to be decided in the trial. In exercise of power under

Section 482 of the Cr.P.C., the Court does not examine the correctness of

the allegations in a complaint except in exceptionally rare cases where it

is patently clear that the allegations are frivolous or do not disclose any

offence. The Complaint Case No.19/2018 is not such a case which

should be quashed at the inception itself without further Trial. The High

Court rightly dismissed the application under Section 482 of the Cr.P.C.

13 (2008) 1 SCC 474

40. For the reasons discussed above, we are not inclined to interfere

with the impugned judgment and order of the High Court. The special

leave petition is, accordingly, dismissed.

41. Documents have been brought on record by the Petitioners which

show that the Petitioner No.1 is a patient of lung cancer of an advanced

stage. He is on strong medication. Considering the condition of the health

of the Petitioner No.1, the Trial Court may consider exempting the personal

appearance of the Petitioner No.1, if such an application is made to the Trial

Court.

………………………………,J.

[ INDIRA BANERJEE ]

……………………………..,J.

[ A.S. BOPANNA ]

NEW DELHI ;

APRIL 20, 2022.

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